### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 18

‐ 3447

U NITED S TATES OF A MERICA

, Plaintiff

‐ Appellee

,

v.

T REMAYNE T. D OZIER

, Defendant

‐ Appellant

.

____________________

Appeal from the United States District Court

for the Central District of Illinois.

No. 18

‐ CR

‐ 20002

‐ 001

— James E. Shadid

, Judge

.

____________________

A RGUED S EPTEMBER 5, 2019

— D ECIDED F EBRUARY 4, 2020

____________________

Before S YKES

, H AMILTON

, and S CUDDER

, Circuit Judges

.

S YKES

, Circuit Judge

. Tremayne Dozier was arrested in

2017 for trafficking methamphetamine in Decatur, Illinois. A

federal grand jury indicted him for conspiracy and posses

‐

sion of methamphetamine with intent to distribute. Under

the terms of the Controlled Substances Act then in effect,

Dozier faced increased penalties if he had a prior conviction

for a “felony drug offense.” 21 U.S.C. § 841(b)(1)(A),2 No. 18

‐ 3447

(b)(1)(B)(viii). 1 A “felony drug offense” is a drug

‐ related

offense “that is punishable by imprisonment for more than

one year under any law of the United States or of a State.” Id.

§ 802(44). The government identified one such conviction: in

2006 Dozier was convicted in Texas of unlawful possession

of cocaine, a “state jail felony” punishable by imprisonment

of six months to two years.

Dozier pleaded guilty to the conspiracy count. At sen

‐ tencing he objected to using the 2006 drug conviction to

enhance his sentence. The Texas case had been resolved by

plea bargain; in exchange for Dozier’s guilty plea, the prose

‐

cutor agreed to a nine

‐ month sentence based on section

12.44(a) of the Texas Penal Code, which gives the sentencing

judge the discretion to punish a person convicted of a state

jail felony by imposing a period of confinement permissible

for a Class A misdemeanor—that is, a term not to exceed one

year. See T EX

. P ENAL C ODE A NN

. §§ 12.21, 12.44(a). The Texas

court accepted the plea agreement, found Dozier guilty of

the state jail felony, and imposed a nine

‐ month sentence.

Dozier argued that the Texas conviction was not a quali

‐ fying predicate because the terms of his plea agreement

exposed him to confinement of not more than one year. The

district judge rejected this argument and imposed a sentence

of 20 years, the mandatory minimum for an offender with a

prior felony drug conviction.

On appeal Dozier again argues that his 2006 Texas con

‐

viction doesn’t qualify as a felony drug offense. We disagree.

1 The First Step Act of 2018, effective December 31, 2018, changed

recidivist penalties for drug crimes. We refer throughout this opinion to

the 2018 penalty provisions in the Controlled Substances Act.No. 18

‐ 3447 3

Dozier pleaded guilty to and was convicted of a two

‐ year

state jail felony. It does not matter that the sentencing judge

accepted the plea bargain and exercised the discretion

conferred by state law to sentence Dozier as if he were a

misdemeanant. Dozier was, in fact, convicted of a two

‐ year

drug felony. We affirm the judgment.

I. Background

In February 2006 Dozier was charged in Dallas County

with possession of less than one gram of cocaine in violation

of section 481.115 of the Texas Health and Safety Code. The

crime is a “state jail felony” under Texas law, punishable by

“[c]onfinement in a state jail for any term of not more than

two years or less than 180 days.” 2 T EX

. P ENAL C ODE A NN

. § 12.35(a). On May 3 Dozier agreed to plead guilty in ex

‐ change for a sentence of nine months. The written plea

agreement, which he signed, lists the offense and its pun

‐

ishment range—“State Jail Felony, 180 days

– 2 years State

Jail”—and specifies an “agreed sentence” of nine months,

citing section 12.44(a) of the Texas Penal Code. That section

provides:

A court may punish a defendant who is con

‐

victed of a state jail felony by imposing the

confinement permissible as punishment for a

Class A misdemeanor if, after considering the

2 Texas law has five felony classifications: “(1) capital felonies;

(2) felonies of the first degree; (3) felonies of the second degree;

(4) felonies of the third degree; and (5) state jail felonies.” T EX

. P ENAL

C ODE A NN

. § 12.04(a). Section 481.115(b) of the Texas Health and Safety

Code provides that the possession of a controlled substance in an

amount “by aggregate weight, including adulterants or dilutants, [of]

less than one gram” is “a state jail felony.”4 No. 18

‐ 3447

gravity and circumstances of the felony com

‐

mitted and the history, character, and rehabili

‐

tative needs of the defendant, the court finds

that such punishment would best serve the

ends of justice.

T EX

. P ENAL C ODE A NN

. § 12.44(a). 3

The prosecutor submitted the agreement to a magistrate

judge that same day along with a motion to “find [Dozier]

guilty of a State Jail Felony as charged and impose confine

‐

ment for a Class A misdemeanor.” Dozier joined the motion.

The magistrate granted it, accepted Dozier’s guilty plea, and

found him “guilty of a State Jail Felony as charged herein.”

The magistrate then recommended that the presiding district

judge adopt the plea agreement and impose a sentence of

nine months. The judge did so, entering judgment on May 3,

2006, convicting Dozier of the state jail felony and ordering

him to serve nine months in jail.

Fast

‐ forward to October 2017: Dozier was arrested in

Decatur for dealing crystal meth. In January 2018 a grand

jury indicted him for conspiracy to possess methampheta

‐

mine with the intent to distribute, 21 U.S.C. §§ 846, 841(a)(1),

841(b)(1)(A), and possession of methamphetamine with the

intent to distribute, id. § 841(a)(1), (b)(1)(B)(viii). The gov

‐

ernment filed an information under 21 U.S.C. § 851 notifying

3 A different subsection of the statute permits a state prosecutor, with the

court’s approval, to prosecute a state jail felony as a misdemeanor offense:

“At the request of the prosecuting attorney, the court may authorize the

prosecuting attorney to prosecute a state jail felony as a Class A misde

‐

meanor.” T EX

. P ENAL C ODE A NN

. § 12.44(b). This subsection is not at

issue here.No. 18

‐ 3447 5

the court that it intended to rely on Dozier’s 2006 Texas

conviction to enhance the applicable penalties under § 841.

Specifically, with one prior conviction for a felony drug

offense, Dozier faced a 20

‐ year minimum sentence on the

conspiracy count, see § 841(b)(1)(A), and a 10

‐ year minimum

on the possession count, see § 841(b)(1)(B).

Dozier pleaded guilty to the conspiracy count. At sen

‐ tencing he objected to using the Texas conviction to enhance

his sentence. He argued that the conviction wasn’t for a

felony offense because under the plea agreement, he wasn’t

exposed to imprisonment of more than one year. The judge

overruled the objection, counted the conviction as a qualify

‐ ing predicate, and sentenced Dozier to a prison term of

20 years, the mandatory minimum.

II. Discussion

Dozier reserved the right to appeal the judge’s ruling that

the Texas conviction qualifies as a predicate felony drug

conviction, triggering the enhanced minimum sentence

under § 841(b)(1)(A). We review de novo questions of law

related to sentencing. United States v. Woolsley

, 535 F.3d 540,

549 (7th Cir. 2008). When a district court determines that a

prior conviction counts toward a recidivist sentencing

enhancement, we review de novo that application of the law

to the fact of the prior conviction. United States v. Burge

,

683 F.3d 829, 833 (7th Cir. 2012).

Under then

‐ existing law, a conviction for conspiracy to

distribute methamphetamine in the quantities at issue here

normally carried a 10

‐ year minimum sentence, but a prior

conviction for a “felony drug offense” raised the mandatory

minimum to 20 years. § 841(b)(1)(A). As we’ve explained, a6 No. 18

‐ 3447

“felony drug offense” is a drug

‐ related offense “that is

punishable by imprisonment for more than one year under

any law of the United States or of a State.” § 802(44). “The

word ‘punishable’ in ordinary English simply means ‘capa

‐

ble of being punished.’” United States v. Nieves

‐ Rivera

,

961 F.2d 15, 17 (1st Cir. 1992) (citations omitted).

Dozier asserts that he pleaded guilty to the Texas drug

charge—a two

‐ year felony—on the understanding that he

was only exposing himself to punishment for a Class A

misdemeanor, which limits confinement to one year. See T EX

.

P ENAL C ODE A NN

. § 12.35(a) (penalties for state jail felonies);

id. § 12.21 (misdemeanor penalties). His plea agreement

referred to section 12.44(a) of the Texas Penal Code, which

gives the sentencing judge the discretion to punish a person

convicted of a state jail felony by imposing the confinement

permissible for a Class A misdemeanor after considering

certain factors about the circumstances of the crime and the

character of the offender. If the judge had rejected the plea

agreement and the magistrate’s recommendation of a nine

‐

month sentence, Dozier would have been entitled to with

‐

draw his guilty plea. See T EX

. C ODE C RIM

. P ROC

. A NN

.

art. 26.13(a)(2). Because his case was resolved under section

12.44(a), Dozier argues that the conviction doesn’t qualify as

a predicate felony drug conviction and should not have been

used to enhance his sentence.

T he Fifth Circuit, which includes Texas, has considered

and rejected this argument, albeit in the context of a recidi

‐

vist enhancement in the Sentencing Guidelines. In United

States v. Rivera

‐ Perez

, the defendant was convicted of illegal

reentry after deportation and objected to using his prior

conviction for a Texas state jail felony to increase his baseNo. 18

‐ 3447 7

offense level under the Guidelines. 322 F.3d 350, 351 (5th Cir.

2003). The applicable offense guideline added 16 levels if the

defendant was previously deported after a conviction for a

felony “crime of violence”; using language materially identi

‐

cal to § 802(44), the application notes define “felony” as

“‘any federal, state, or local offense punishable by impris

‐

onment for a term exceeding one year.’” Id. at 351–52 (quot

‐ ing U.S.S.G. § 2L1.2(b)(1)(A) cmt. n.1(B)(iv) (Nov. 2001)). The

defendant argued that his Texas conviction for a state jail

felony did not trigger the enhancement because his plea

agreement relied on section 12.44(a) of the Texas Penal Code

and his actual sentence was just 90 days.

The Fifth Circuit disagreed, explaining that “[t]he plain

language of [section] 12.44[a] indicates that the crime re

‐

mains ‘the felony committed’ even though the defendant

may be punished as if for a misdemeanor.” Rivera

‐ Perez

, 322

F.3d at 352. The court pointed to a series of Texas cases

confirming that the “crime remains a felony even if pun

‐

ished as a misdemeanor under [section] 12.44[a].” Id. (citing

Fite v. State

, 60 S.W.3d 314, 320 (Tex. Ct. App. 2001); Arriola v.

State

, 49 S.W.3d 374, 375–76 (Tex. Ct. App. 2000); Hadnot v.

State

, 851 S.W.2d 378, 379 (Tex. Ct. App. 1993)). 4 Finally, the

court noted that the defendant’s plea agreement clearly

stated that “although [he] was being punished as for a

misdemeanor, the judgment ‘shall constitute A FINAL

4 Another Texas case can be added to the Fifth Circuit’s list, one decided

after Rivera

‐ Perez

. See Ex parte Palmberg

, 491 S.W.3d 804, 805 n.1 (Tex.

Crim. App. 2016) (affirming that a “felony conviction is all that an

applicant must show for a claim to be cognizable in post

‐ conviction

habeas corpus proceedings” and stating that an applicant who was

sentenced under section 12.44(a) was “convicted of a state jail felony”).8 No. 18

‐ 3447

FELONY CONVICTION FOR DEFENDANT .’” Id. According

‐ ly, the court held that a conviction for a Texas state jail

felony, a two

‐ year felony under state law, qualifies as a

predicate for the Guidelines enhancement “regardless [of]

whether the defendant is sentenced under Texas Penal Code

[section] 12.44[a].” Id.

Three years after Rivera

‐ Perez

, the Fifth Circuit reached

the same conclusion in a case involving the recidivist provi

‐

sion in the Armed Career Criminal Act (“ACCA”), which

raises the minimum sentence for certain gun crimes if the

defendant has prior convictions for a “violent felony.”

United States v. Harrimon

, 568 F.3d 531, 533 n.3 (5th Cir.

2009). The ACCA defines “felony” the same way as the

Guidelines: “any crime punishable by imprisonment for a

term exceeding one year.” 18 U.S.C. § 924(e)(2)(B). Richard

Ray Harrimon pleaded guilty to unlawfully possessing

firearms, and the court had to decide whether his two Texas

convictions for “fleeing by vehicle”—both state jail felo

‐

nies—counted as predicate “violent felonies” under the

ACCA. Harrimon

, 568 F.3d at 533 n.3. One of Harrimon’s

Texas cases had been resolved under section 12.44(a) with a

misdemeanor

‐ length sentence; he argued that it could not be

counted as a predicate. The Fifth Circuit disagreed, reaching

the same conclusion as it had in Rivera

‐ Perez : “the relevant

statute [describing the state jail felony] plainly authorizes up

to two years of imprisonment

... , a fact which is unaltered

by the sentencing judge’s discretionary decision [under

section 12.44(a)] to impose a lesser sentence.” Id.

The Fifth Circuit’s reasoning is sound. We’d need a good

reason to disagree—or at least a statutorily grounded basis

for reaching a different conclusion under the recidivistNo. 18

‐ 3447 9

provisions in the Controlled Substances Act. But the Act’s

definition of “felony” is materially identical to the defini

‐

tions in the ACCA and the Guidelines. Dozier has given us

no basis for treating his Texas state

‐jail

‐ felony conviction

differently in this context.

Dozier argues instead that Rivera

‐ Perez and Harrimon

have been called into question by the Supreme Court’s

decision in Carachuri

‐ Rosendo v. Holder

, 560 U.S. 563 (2010).

Carachuri

‐ Rosendo arose under the Immigration and Nation

‐ ality Act (“INA”) and concerned eligibility for cancellation

of removal, a form of discretionary relief available to immi

‐

grants in removal proceedings who have “not been convict

‐

ed of any aggravated felony.” 8 U.S.C. § 1229b(a)(3)

. The

INA’s definition of “aggravated felony” includes a “drug

trafficking crime,” id. § 1101(a)(43)(B), a phrase further

defined by cross

‐ reference to the definitions in Title 18: a

“drug trafficking crime” is “any felony punishable under

the Controlled Substances Act (21 U.S.C. §§ 801 et seq. ),”

18 U.S.C. § 924(c)(2), and a “felony” is a crime for which the

“maximum term of imprisonment authorized” is “more than

one year,” id. § 3559(a)(5).

Jose Carachuri

‐ Rosendo was placed in removal proceed

‐ ings based on two Texas misdemeanor convictions for

simple drug possession. Carachuri

‐ Rosedo

, 560 U.S. at 570–71.

He conceded removability but sought relief in the form of

cancellation of removal. The government opposed cancella

‐

tion, arguing that his second offense for simple possession

could have been prosecuted in federal court with a recidivist

enhancement, and in that scenario his offense would have

been a felony punishable by up to two years in prison. Id. at

570. (State law, too, authorized a sentence enhancement for10 No. 18

‐ 3447

recidivists, but Carachuri

‐ Rosendo was not convicted of a

recidivist

‐ enhanced offense. Id. at 570–71.) Because his

conduct could have been prosecuted as a felony under the

Controlled Substances Act (by application of a recidivist

enhancement), the government insisted that Carachuri

‐

Rosendo was ineligible for cancellation of removal.

The Fifth Circuit agreed, but the Supreme Court re

‐

versed. The Court held that the INA “limits the Attorney

General’s cancellation authority only when the noncitizen

has actually been ‘convicted of a[n] aggravated felony’—not

when he merely could have been convicted of a felony but

was not.” Id. at 578 (quoting 8 U.S.C. § 1229b(a)(3)).

Carachuri

‐ Rosendo does not undermine Rivera

‐ Perez and

Harrimon

. The defendants in the two Fifth Circuit cases

actually were convicted of felonies; they were not convicted of

misdemeanors that could have been prosecuted as felonies but

were not. Just so here. Dozier was convicted of a two

‐ year

state jail felony but received a misdemeanor

‐ length sentence

pursuant to a plea bargain.

Dozier also relies on United States v. Valencia

‐ Mendoza

,

912 F.3d 1215, 1216 (9th Cir. 2019), but that case doesn’t help

him. In Valencia

‐ Mendoza the defendant pleaded guilty to

illegal reentry after removal; at sentencing the district court

applied a Guidelines recidivist enhancement for offenders

with a prior felony conviction based on the defendant’s

Washington conviction for possession of cocaine, a Class C

felony. Id. State law specified a five

‐ year maximum for that

felony class, but the statutory scheme also set a mandatory

six

‐ month cap on the sentence unless certain aggravating

factors were present. Id. at 1216–17. The six

‐ month cap

applied in the defendant’s case because no aggravatingNo. 18

‐ 3447 11

factors were found; he was sentenced to just 30 days. Id. at

1217. Applying Carachuri

‐ Rosendo

, the Ninth Circuit reversed

and remanded for resentencing without the enhancement.

Because the statutory maximum penalty for the crime was

six months, the defendant’s offense wasn’t punishable by a

term exceeding one year as required for the enhancement. Id.

at 1224.

Dozier’s Texas conviction is different. Section 12.44(a) is

discretionary, not mandatory.

For the same reason, Dozier’s reliance on the Eighth Cir

‐

cuit’s decision in United States v. Haltiwanger is also mis

‐ placed. In that case, the defendant was convicted of

conspiracy to distribute drugs and (like Dozier) faced a

20

‐ year mandatory minimum under § 841 if he had a prior

conviction for a felony drug offense. 637 F.3d 881, 882 (8th

Cir. 2011). The defendant had a Kansas conviction for failing

to affix a drug tax stamp, a crime with a 13

‐ month statutory

maximum. The district court counted the conviction, im

‐ posed the 20

‐ year minimum sentence, and the Eighth Circuit

initially affirmed. Id. at 882–83. After the Supreme Court

remanded for reconsideration in light of Carachuri

‐ Rosendo

,

the Eighth Circuit reversed course. Because the defendant

was not a recidivist, the statutory maximum penalty for his

Kansas offense was seven months. Id. Accordingly, t he court

concluded that the conviction did not qualify as a prior

felony drug conviction and remanded for resentencing. Id. at

884.

Again, Dozier’s case is different. Under section 12.44, a

Texas court has the discretion to punish a state jail felony by

imposing a misdemeanor

‐ length term of confinement. The

statutory maximum for the offense is two years.12 No. 18

‐ 3447

This case is closer to United States v. Graham

, 3 15 F.3d 777,

783 (7th Cir. 2003). There the district court sentenced the

defendant to the 20

‐ year minimum term under § 841 based

on his prior Illinois conviction for felony drug possession. Id.

The defendant argued that the conviction did not count as a

prior drug felony because the Illinois court had sentenced

him to “first offender probation,” which he successfully

completed. Id. at 781. We rejected that argument, holding

that the state court’s decision to sentence the defendant to

probation rather than prison “does not alter the fact that he

possesses a prior drug

‐ related felony conviction qualifying

him for the enhancement under § 841(b)(1)(B).” Id. at 783.

To sum up, Dozier pleaded guilty to and was convicted

of a Texas state jail felony punishable by confinement of six

months to two years. For purposes of the Controlled Sub

‐

stance Act’s sentencing enhancements for prior felony drug

convictions, the fact that the statutory punishment range for

Dozier’s offense of conviction extended beyond one year is

all that matters. Texas law is clear that a conviction for a

state jail felony remains a conviction for a state jail felony

even if the sentencing court exercises the discretion con

‐

ferred by section 12.44(a) and imposes a misdemeanor

‐ length sentence. The district judge properly counted Dozi

‐

er’s Texas conviction as a predicate felony drug conviction

under § 841.

A FFIRMEDNo. 18

‐ 3447 13

H AMILTON

, Circuit Judge

, dissenting. No matter how we

decide this appeal, Mr. Dozier will be punished severely for

his 2018 federal methamphetamine conviction. Our question

is whether the mandatory minimum sentence for his federal

conviction is ten years or twenty, imposed before the First

Step Act took effect. The answer depends on the legal effect

of his 2006 conviction in Texas for possessing 0.4 grams of co

‐

caine. More specifically, the question is whether that convic

‐

tion counts as one for a prior “felony drug offense” under 21

U.S.C. § 841(b) (2018), defined in 21 U.S.C. § 802(44) as “an of

‐

fense that is punishable by imprisonment for more than one

year under any law of the United States or of a State or foreign

country that prohibits or restricts conduct relating to” various

controlled substances.

The key word here is “punishable.” If a defendant’s prior

sentence was more than a year in prison, it is easy to apply. If

a defendant’s prior sentence was less than a year in prison, it

is also established that we focus on what the defendant’s sen

‐

tence for the crime could have been under the law, not what

it actually was. But in applying that standard to a host of state

statutes and sentencing guidelines, the deceptively simple

word “punishable” becomes more complex. Two questions

are decisive here: who must be punishable with more than

one year in prison, and as of what point in the proceedings?

My colleagues do not answer those questions directly, but the

correct answers point toward reversal here.

After Carachuri

‐ Rosendo v. Holder

, 560 U.S. 563 (2010), it is

not enough that Texas cited a drug

‐ possession statute labeled

as a felony as Dozier’s offense of conviction. It also is not

enough that others convicted under that same statute might

face more than a year in prison. The question is instead14 No. 18

‐ 3447

whether, at the time of conviction

, the Texas judge had legal au

‐ thority to send Dozier himself to prison for more than one year.

She did not. Such a sentence was legally impossible after the

judge accepted Dozier’s binding plea agreement and con

‐

victed him. I would accordingly find that the 2006 conviction

was, for Dozier, not for “an offense that is punishable by im

‐ prisonment for more than one year.” Even if that conclusion

is not correct, the use of the word “punishable” in the Con

‐

trolled Substances Act is at least ambiguous as applied to this

Texas conviction. I would apply the rule of lenity and still re

‐

mand this case for resentencing.

I. Offense “Punishable” by More than One Year?

Dozier was charged with violating Texas Health & Safety

Code § 481.115, which makes possession of less than a gram

of cocaine a “state jail felony.” Ordinarily, a state jail felony

can be punished by up to two years in a state jail. Tex. Penal

Code § 12.35(a). Dozier was certainly charged with an offense

that was punishable by imprisonment for more than one year.

But the Controlled Substances Act speaks of “a prior con

‐

viction,” of course, not a prior charge. Pursuant to a plea

agreement, the Texas prosecutor and Dozier jointly moved

the court to “find him guilty of a State Jail Felony as charged

and impose confinement for a Class A misdemeanor as pro

‐

vided in Sec. 12.44(a) of the Texas Penal Code” (underlining

in original). Section 12.44 gives judges and prosecutors two

paths to ensure that a “state jail felony” is punished as a mis

‐

demeanor:

(a) A court may punish a defendant who is con

‐

victed of a state jail felony by imposing the con

‐

finement permissible as punishment for a ClassNo. 18

‐ 3447 15

A misdemeanor if, after considering the gravity

and circumstances of the felony committed and

the history, character, and rehabilitative needs

of the defendant, the court finds that such pun

‐

ishment would best serve the ends of justice.

(b) At the request of the prosecuting attorney,

the court may authorize the prosecuting attor

‐

ney to prosecute a state jail felony as a Class A

misdemeanor.

Tex. Penal Code § 12.44. After committing to either the (a)

path or the (b) path, the judge must sentence the defendant to

misdemeanor punishment, which means “confinement in jail

for a term not to exceed one year.” Id. § 12.21. Dozier’s bind

‐ ing plea agreement, for example, required a sentence of nine

months.

The Texas trial court granted the joint motion under

§ 12.44(a). The final judgment described the offense of convic

‐

tion using two phrases: “convicted of: state jail” and “punish

‐

ment reduced to: Class A misdemeanor.” Importantly, the

judgment also stated that Dozier had the right to withdraw

his guilty plea if the court had rejected the misdemeanor pun

‐

ishment. 1 As a result, Dozier’s conviction barred the judge

from sentencing him to more than one year.

Texas was still free to refer to the offense of conviction as

a “state jail felony,” of course, and to attach whatever

1 See Tex. Code Crim. Proc. art. 26.13(a)(2) (“[T]he court shall inform

the defendant whether it will follow or reject the agreement in open court

and before any finding on the plea. Should the court reject the agreement,

the defendant shall be permitted to withdraw the defendant’s plea of

guilty

. . . .”).16 No. 18

‐ 3447

collateral consequences that label carries in Texas. I assume

that Texas in fact regarded Dozier’s conviction as a state jail

felony. The majority concludes that the label of the offense

and the ordinary maximum of two years control here, relying

on Fifth Circuit decisions that have so interpreted Texas Penal

Code § 12.44(a). See ante at 12. But ours is a question of federal

statutory interpretation, not Texas law as such. See United

States v. Graham

, 315 F.3d 777, 783 (7th Cir. 2003). State

‐ law

labels do not control under 21 U.S.C. § 802(44). Burgess v.

United States

, 553 U.S. 124, 129 (2008).

More important, the analysis must look beyond the maxi

‐

mum possible sentence for just any defendant. There is no

doubt that some defendants convicted of the offense of con

‐

viction, possession of less than one gram of cocaine, can be

punished with as much as two years in prison. See Tex.

Health & Safety Code § 481.115(b); Tex. Penal Code § 12.35(a).

As I read the Supreme Court’s decisions most closely on

point, however, we have answers to the two questions: who

must be punishable, and as of when? The issue is not whether

anyone convicted of the offense can be sentenced to more than

one year, but whether this defendant could have been sen

‐

tenced to more than one year. And that question must be an

‐

swered as of the time of conviction, not any earlier stage, such

as charging or plea negotiations.

In United States v. Rodriquez

, 553 U.S. 377 (2008), and Cara

‐

churi

‐ Rosendo v. Holder

, 560 U.S. 563 (2010), the Supreme Court

directed the focus to the situation of this individual defend

‐

ant. In Rodriquez

, the defendant was convicted in federal court

of possessing a firearm as a felon in violation of 18 U.S.C.

§ 922(g). His maximum sentence was ten years, unless he had

three previous convictions for violent felonies or “seriousNo. 18

‐ 3447 17

drug offenses,” in which case he faced a minimum fifteen

years in prison. “Serious drug offense” was defined for these

purposes to include state drug offenses “for which a maxi

‐

mum term of imprisonment of ten years or more is prescribed

by law.” 18 U.S.C. § 924(e)(2)(A)(ii); see 553 U.S. at 381–82. For

a first

‐ time offender, Rodriquez’s three prior Washington

drug felonies would have carried maximum five

‐ year sen

‐

tences. Because of his individual criminal record, though, the

offenses Rodriquez had committed carried maximum sen

‐

tences of ten years. Id. at 380–81. The Supreme Court held that

the maximum sentences “prescribed by law” as “set by the

applicable recidivist provision” applicable to Rodriquez were

the relevant standards. Id

. at 393. His state convictions there

‐

fore triggered the enhanced federal sentence.

Rodriquez thus teaches us to focus on the punishment this

individual defendant faced in the prior case. So far, so good.

Two years later in Carachuri

‐ Rosendo

, the Supreme Court re

‐ jected the government’s effort to stretch the logic of Rodriquez

to the punishment that some other hypothetical offenders

might face. See 560 U.S. at 577 n.12 (distinguishing Rodriquez ).

In doing so, the Court reinforced the focus on the particular

defendant and taught that the punishment authorized by law

must be measured at the time of the individual defendant’s

conviction, not the time of charging.

The question in Carachuri

‐ Rosendo was whether, under im

‐ migration law, the petitioner had been convicted of an “ag

‐ gravated felony.” The government argued that the second of

two drug possessions, which had been treated as a misde

‐

meanor under Texas law, should count as an aggravated fel

‐

ony under federal immigration law. According to the govern

‐

ment, since the offense could have been prosecuted as an18 No. 18

‐ 3447

aggravated felony under federal law, the petitioner should be

treated as if he had been convicted of an aggravated felony.

560 U.S. at 570. The Supreme Court unanimously rejected that

proposal to rely on what could have been. The record of the

second conviction included no finding about the first convic

‐

tion. That distinguished the case from Rodriquez and meant

that the second conviction did not count as an aggravated fel

‐

ony. Id

. at 576–78 & n.12.

The Court explained further in Carachuri

‐ Rosendo that the

aggravated felony determination for federal law had to be

based on the record of conviction, not based on what a differ

‐

ent prosecutor might have tried to do with a recidivist en

‐

hancement. Id

. at 580–81. In other words, the defendant must

“have been actually convicted of a crime that is itself punisha

‐

ble as a felony under federal law.” Id. at 582.

The logic of Carachuri

‐ Rosendo and Rodriquez also shows

that the focus must be the punishment legally available at the

time of conviction, not the time of charging. Both opinions

stressed the facts that recidivist enhancements (a) may not be

known at the time of charging and (b) ordinarily must be the

subject of formal notice and an opportunity to be heard and

must be reflected in the record before they can be used to en

‐

hance a sentence. 553 U.S. at 389; 560 U.S. at 572, 576.

The same logic also works for the benefit of a defendant

who agrees to plead guilty to a lesser charge. For example, my

colleagues and I agree that a defendant who is charged with

a low

‐ level felony but who pleads guilty to a serious misde

‐

meanor (maximum sentence of one year) has not been con

‐

victed of an offense “punishable” by more than one year in

prison. That is so even if he faced more than one year at the

time of charging, and even if his actual conduct could haveNo. 18

‐ 3447 19

fully justified a felony conviction and sentence. At the time of

conviction, such a defendant was not facing more than one

year in prison.

With the proper focus on the maximum sentence legally

applicable to this defendant, on this record, at the time of convic

‐

tion

, I do not see a sound basis for distinguishing such a plea

agreement from this case. At the time of his 2006 conviction,

Dozier was not legally subject to a sentence of more than one

year.

Our colleagues in other circuits have applied Rodriquez

and Carachuri

‐ Rosendo to mandatory state sentencing guide

‐

lines. Their decisions are consistent with my reading of those

Supreme Court cases. A consensus is emerging that a maxi

‐

mum penalty set by state sentencing guidelines—as applied

to a particular defendant—controls the federal question of

what punishment was available. For instance, in United States

v. Pruitt

, 545 F.3d 416, 423 (6th Cir. 2008), the Sixth Circuit in

‐ terpreted Rodriquez to require asking whether “the particular

defendant actually faced the possibility of the enhancement.”

Cases decided since Carachuri

‐ Rosendo have continued this

approach. See United States v. Simmons

, 649 F.3d 237, 243 (4th

Cir. 2011) (en banc) (prior conviction “punishable” only to ex

‐

tent that mandatory state sentencing guidelines permitted for

the particular defendant); United States v. Haltiwanger

, 637

F.3d 881, 884 (8th Cir. 2011) (same, notwithstanding state’s la

‐

bel of prior conviction as “felony”); United States v. Valencia

‐

Mendoza

, 912 F.3d 1215, 1224 (9th Cir. 2019) (same); United

States v. Brooks

, 751 F.3d 1204, 1211 (10th Cir. 2014) (same, fo

‐ cusing on record of prior conviction); see also United States v.

Lockett

, 782 F.3d 349, 352 (7th Cir. 2015) (“under Rodriquez

, if

state court records do not demonstrate that Lockett actually20 No. 18

‐ 3447

faced the possibility of a recidivist enhancement, the 1990 con

‐

victions cannot be used as qualifying offenses”).

These decisions point in the same direction I would take:

focus on the legally available maximum sentence, on the state

‐

court record, at the time of conviction. Take Simmons

, in

which the en banc Fourth Circuit followed Carachuri

‐ Rosendo

to overrule its prior precedents. See 649 F.3d at 241. North

Carolina categorized the predicate offense as a “Class I fel

‐ ony.” Id. at 240. Depending on a defendant’s history and other

factors established by state law, the maximum sentence could

have been over a year or no time at all. Id. at 241. Before Cara

‐

churi

‐ Rosendo

, the Fourth Circuit had used a “worst possible

criminal history” approach, imagining how North Carolina

would treat the worst recidivist charged with that crime. Id.

at 241, 246. Simmons abandoned this method because Cara

‐

churi had rejected “considering hypothetical aggravating fac

‐

tors when calculating [the] maximum punishment.” Id. at 244.

Instead, the Fourth Circuit looked at the sentence to which

Simmons himself was exposed based on the sentencing fac

‐

tors proved by the state. That sentence was only “community

punishment,” with no prison at all. Id. at 243.

This individualized evaluation cannot happen at the time

of charging. The main dissent in Simmons pressed this very

point: “the aggravated factors need not be part of the indict

‐

ment or formal charge, nor is the conviction itself different

from a conviction for the presumptive (or, indeed, mitigated)

offense.” Id. at 256 (Agee, J., dissenting). But the Fourth Cir

‐

cuit correctly rejected this argument as contrary to Rodriquez

and Carachuri

‐ Rosendo

. Id. at 243 (majority). In Rodriquez

, the

Supreme Court explained that if state court records “do not

show that the defendant faced the possibility of a recidivistNo. 18

‐ 3447 21

enhancement, it may well be that the Government will be pre

‐

cluded from establishing that a conviction was for a qualify

‐ ing offense.” 553 U.S. at 389. Carachuri

‐ Rosendo reiterated this

limit on Rodriquez : “a recidivist finding could set the ‘maxi

‐

mum term of imprisonment,’ but only when the finding is a

part of the record of conviction.” 560 U.S. at 577 n.12; see also,

e.g., Brooks

, 751 F.3d at 1210 (following this limit on Rodriquez

to overrule circuit precedent).

My colleagues err in concluding that Simmons and similar

decisions are not relevant here. The majority distinguishes Va

‐

lencia

‐ Mendoza

, 912 F.3d at 1216, and Haltiwanger

, 637 F.3d at

881, on the theory that the lower sentences in those cases were

mandated by law, while the use of § 12.44(a) is discretionary.

Ante at 10–11. The theory does not stand up to those opinions

or the state

‐ court record here. Both Rodriquez and Carachuri

‐

Rosendo also dealt with decisions by prosecutors that were

discretionary at the outset. The prosecutors could decide how

to charge the defendants and whether to seek recidivist en

‐

hancements. Section 12.44, in both subsections (a) and (b),

gives the judge alone or the judge and the prosecutor together

discretion to reduce the available sentencing range. But once

the judge exercised that discretion in Dozier’s 2006 case to ac

‐

cept a binding plea with a § 12.44(a) agreement, the reduced

range became as binding for Dozier as the reduced ranges

were in Valencia

‐ Mendoza and Haltiwanger and the other man

‐ datory state

‐ guideline cases.

A prosecutor’s choice after charging to prove up a recidi

‐

vist enhancement, which controlled in Rodriquez

, is just the

counterpart to a choice to offer a plea to a misdemeanor or a

binding plea for a misdemeanor sentence under § 12.44(a).

Under the North Carolina guidelines in Simmons

, for instance,22 No. 18

‐ 3447

“[o]nce the judge identifies the appropriate range

. . . he must

choose the defendant’s minimum sentence from within that

range.” 649 F.3d at 240; see also N.C. Gen. Stat. § 15A

‐

1340.16(a) (“[T]he decision to depart from the presumptive

range is in the discretion of the court.”). In other words, a

North Carolina judge has an initial and discretionary choice.

After the choice is made, though, the sentence is capped as a

matter of law. The same is true of the discretion authorized

by § 12.44(a) and used in Dozier’s binding plea agreement. 2

Perhaps the Supreme Court meant to establish a one

‐ way

ratchet in Rodriquez —so that a post

‐ charging recidivist en

‐

hancement can raise a maximum sentence but a post

‐ charg

‐ ing, legally binding cap cannot lower it. That seems to be the

rule my colleagues implicitly adopt. But that is not consistent

with Carachuri

‐ Rosendo or the recent decisions of our col

‐ leagues in other circuits. Since federal recidivist rules can be

governed by the post

‐ charging actions of a state prosecutor to

raise the legally permissible sentence in an earlier case, I see

no reason to disregard similar actions that lowered the legally

permissible sentence in an earlier case. And since Dozier re

‐

tained an unqualified right to withdraw his guilty plea if the

2 In fact, the leading Fifth Circuit case analyzing § 12.44(a) empha

‐

sized the parallel to mandatory sentencing guidelines. In United States v.

Rivera

‐ Perez

, relied on by the majority, ante at 6–7, the Fifth Circuit said

that it was “apply[ing] the essential reasoning” of its decision the previous

year in United States v. Caicedo

‐ Cuero

, 312 F.3d 697 (5th Cir. 2002). See 322

F.3d 350, 352. Caicedo

‐ Cuero involved a Texas law that “provided a maxi

‐

mum sentence of two years but mandated that first

‐ offenders should get

suspended sentences and probation.” Id. So while my colleagues seek to

draw a sharp line between § 12.44(a) and mandatory sentencing guide

‐

lines, their similarities provided the “essential reasoning” of the case the

majority relies on.No. 18

‐ 3447 23

judge had rejected the misdemeanor punishment under

§ 12.44(a), his 2006 offense was not punishable by more than

one year in prison when he was convicted. That cap was as

legally binding as if Dozier had pleaded guilty to an offense

labeled a misdemeanor. His mandatory minimum sentence in

this case should have been ten years, not twenty.

II. The Rule of Lenity

At the very least, we should recognize that the Controlled

Substances Act is ambiguous as applied to Dozier’s case. The

phrases “a prior conviction” and “an offense that is punisha

‐

ble by imprisonment for more than one year” simply do not

dictate the treatment of binding plea agreements to hybrid

convictions under § 12.44(a). To my knowledge, only one

other circuit has examined a plea agreement with a binding

sentencing term after Carachuri

‐ Rosendo

. A Fourth Circuit

panel also split on the question. See United States v. Valdovinos

,

760 F.3d 322 (2014); id. at 330 (Davis, J., dissenting). As here,

the panel majority sided with the government, declining to

extend the reasoning of Simmons to a binding plea agreement.

But Judge Davis’s dissent shows room for reasonable disa

‐

greement on how Congress meant courts to analyze a binding

plea under an unusual statute like § 12.44(a).

I think the better reading is that Dozier’s 2006 conviction

should not count under § 841(b), but even if I thought the

proper result were not clear, I would apply the rule of lenity.

The rule of lenity “applies if at the end of the process of con

‐ struing what Congress has expressed there is a grievous am

‐ biguity or uncertainty in the statute.” Shaw v. United States

,

137 S. Ct. 462, 469 (2016) (quotations omitted). “When a stat

‐

ute remains ambiguous even after considering its text,24 No. 18

‐ 3447

context, structure, history and purpose, then—and only

then—the rule of lenity may apply.” United States v. Marcotte

,

835 F.3d 652, 656 (7th Cir. 2016). “[T]he rule has been applied

not only to resolve issues about the substantive scope of crim

‐

inal statutes, but to answer questions about the severity of

sentencing

. . . .” United States v. R.L.C

., 503 U.S. 291, 305

(1992).

Acknowledging the rule’s limited scope, I believe this to

be an appropriate case for its application. Section 12.44(a) sets

up a hypothetical almost tailor

‐ made to test the boundaries of

the increasingly case

‐ specific arithmetic mandated by the Su

‐

preme Court in this context. When such a hypothetical pre

‐

sents itself, we should err on the side of lenity because “no

citizen should be held accountable for a violation of a statute

whose commands are uncertain, or subjected to punishment

that is not clearly prescribed.” United States v. Santos

, 553 U.S.

507, 514 (2008).

I respectfully dissent. We should reverse and remand for

resentencing without the enhancement based on Dozier’s

2006 conviction.